Loyola University Chicago School of Law, JD 2022
Under Roe v. Wade, the Supreme Court found that states could not create onerous requirements which interfered with a patient’s right to an abortion up to the point of viability of the fetus, which was around 24 weeks. However, Texas’ new law erodes that decision. On May 9, 2021, Texas Governor Greg Abbott signed Texas’ new abortion law commonly known as the fetal “heartbeat” bill, and on September 1, 2021, the Supreme Court refused to block Texas’ “heartbeat” bill. The new law bans abortions as soon as cardiac motion can be detected in the embryo, roughly six weeks into a pregnancy.
The “heartbeat” bill contradicts the purpose of standing and adversely impacts not only the patients but people working in the medical field, families and friends of the patients, people who support a person’s right to choose, and society as a whole. Congress cannot continue to idly sit by. Congress must codify the principles of Roe v. Wade to protect an individual’s right to health care.
The bill contradicts the purpose of standing
As part of this law, Texas Senate Bill 8 gives private citizens standing for civil remedies when they “reasonably believe” that another person provided an illegal abortion or assisted someone in getting an abortion. As University of Houston Law Center professor Seth Chandler stated, “this law gives virtually anyone the right to sue, regardless of whether they suffered any injury from the abortion.”
The purpose of standing is to promote efficiency in the courts by ensuring that only a harmed party can seek legal remedy. This unprecedented statutory scheme has deputized the population at large and provided unharmed citizens the right to sue doctors, facility staff members, family members, domestic violence and rape crisis counselors, and anyone who helps pay for the procedure, including people who have financially supported abortion funds and clinics. This law is the most extreme and strict abortion restriction in the country, and it empowers citizens to enforce the law by suing anyone who helps facilitate an abortion.
Many are now at risk of frivolous lawsuits. A group of over 200 Texas physicians drafted and signed a letter in opposition to the law, stating that providers are now reticent to give information or care to patients “out of fear of being sued.” As a result of this bill, patients are being adversely impacted and pregnant patients will suffer where they are not able to receive the care that they need.
Congress needs to act
In a May 6, 2021 study, the Pew Research Center found that fifty-nine percent of United States adults believe that abortion should be legal in all or most cases, where thirty-nine percent believed that abortion should be illegal in all or most cases. However, regardless of public opinion, since January of 2021, nineteen states have enacted ninety-seven restrictions on abortion and it is expected that the number of proposed restrictions will increase after the reception of the “heartbeat” bill.
With threats of more state regulations on the horizon, Congress cannot continue to sit on the sidelines, and it is time for Congress to pass a law and codify the principles of Roe v. Wade. As Chief Executive of the Center for Reproductive Rights Nancy Northup stated, “the venue for protection has shifted significantly to the Congress and the administration,” where many are concerned that with the more frequent attacks on Roe v. Wade, one of them is more likely to stick.
Currently, the Women’s Health Protection Act sits in both the House and Senate. In the House, the bill was introduced with 117 cosponsors, and in the Senate, the bill was introduced with 48 cosponsors, including Illinois’ Senators Tammy Duckworth and Richard J. Durbin. However, the Women’s Health Protection Act needs to be put to a vote when Congress returns from recess.
In addition to Congress’ codification, President Biden and the Department of Justice need to publicly and meaningfully challenge the “heartbeat” bill, including protecting under the Freedom of Access to Clinic Entrances Act (FACE). Judiciously, on September 9, 2021, the Department of Justice filed suit against Texas over the “heartbeat” bill, where the Department of Justice alleged that the Act inflicted irreparable injury under the parens patriae theory as well as restricts the operations of the federal government. We need further actions in line with this lawsuit.
As citizens, we can challenge this bill by voting for representation that will support the Women’s Health Protection Act and who will challenge the “heartbeat” bill. Additionally, according to NPR, a successful challenge to the abortion restrictions has been advanced by Tiktok activists who are fighting back against the “heartbeat” bill by spamming the “Pro Life Whistle Blower” website which enables residents to report people for potential violations. Another method to challenge this abominable restriction and support patients is to donate to help people overcome to expenses of traveling to a new state which provides medical care. Organizations like Fund Texas Choice were established to help people get to and from appointments, secure lodging, and pay for any costs that would keep them from accessing their health care.
Texas’ abortion law adversely impacts patients and contradicts the purpose of standing, Congress needs to take action to stop these restrictions and to protect people’s right to health care.